Citation Nr: 1235618
Decision Date: 10/15/12 Archive Date: 10/23/12
DOCKET NO. 07-07 094 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUE
Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and atypical anxiety disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. L. Douglas, Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from May 1973 to July 1976 and from October 1977 to November 1979.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board reopened and remanded the issue on appeal in December 2010.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
A review of the record shows that in its December 2010 remand the Board instructed the RO/AMC to schedule the Veteran for a VA examination for opinions as to the etiology of any current psychiatric disorders. The examiner was instructed to review the claims file and provide a complete rationale for all opinions expressed. Although the Veteran was provided a VA examination in May 2012 and the examiner noted the claims file had been reviewed, the Board finds the provided opinion appears to have been based upon an inaccurate or incomplete review of the record. The provided opinion also appears to be inconsistent with the findings upon VA examination in August 1987. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
The Board further finds it is significant that pertinent VA treatment reports were added to the electronic VA record on June 12, 2012, and that the May 2012 VA examiner's report does not appear to have considered relevant legal and behavioral history evidence including disciplinary action the Veteran received during active service, VA treatment records showing he reported having been incarcerated for armed robbery from 1979 to 1986 and having sustained a disabling head injury in 1985, a May 1992 VA treatment record showing he had sustained a gunshot wound to the right upper extremity, nor a June 10, 2003, VA treatment record showing he reported personal trauma associated with a person having died in his arms after a motor vehicle accident. The recently obtained VA treatment records also show that in June 2003 the Veteran reported he had been receiving Social Security Administration (SSA) disability benefits for more than 10 years as a result of a head injury.
The Board notes that the records associated with the Veteran's SSA disability claim are not of record. The Court has held that SSA decisions are not controlling for VA purposes, but they are pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist the Veteran in gathering such records. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-372 (1992). Where SSA disability benefits have been granted, a remand to obtain SSA records is required. See Quartuccio v. Principi, 16 Vet. App. 183, 187-88 (2002) (stating that "the possibility that the SSA records could contain relevant evidence . . . cannot be foreclosed absent a review of those records."). For these reasons, the Board finds additional development is required prior to appellate review.
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have provided any treatment pertinent to the issue on appeal. He should be specifically requested to provide records associated with his treatment during his period of incarceration or to provide sufficient information for VA assistance in obtaining any existing additional pertinent evidence. After the Veteran has signed the appropriate releases, any such records should be obtained and associated with the claims folder.
Appropriate efforts must be taken to obtain pertinent VA treatment records, unless further efforts would be futile. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.
2. Appropriate efforts should be taken to obtain a complete copy of the Veteran's Social Security Administration benefit claim, as well as, all associated medical records.
3. Thereafter, the Veteran's claims file should be returned to the May 2012 VA examiner for clarification of the provided etiology opinion. The examiner should be requested to address the evidence indicating disciplinary action the Veteran received during active service; VA treatment records showing he reported having been incarcerated for armed robbery from 1979 to 1986 and having sustained a disabling head injury in 1985; a May 1992 VA treatment record showing he sustained a gunshot wound to the right upper extremity; a June 10, 2003, VA treatment record showing he reported personal trauma associated with a person having died in his arms after a motor vehicle accident; and any additional records associated with his SSA disability claim.
If the May 2012 VA examiner is unavailable, the Veteran should be scheduled for an appropriate VA examination for an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that he has an acquired psychiatric disorder, to include PTSD and/or atypical anxiety disorder, as a result of active service. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report.
Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.
4. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with appropriate consideration of all the evidence of record. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).